Im really delighted that Carol invited me here. One of
the things she wanted me to talk about was an issue we had gotten
into in Washington, DC, last December. The Republican National
Committee has started an organization called the National Policy
Forum thats going around the country listening to the people
and seeing the problems that people are having with government.
One of the first policy forums they had was on private property
rights and what is happening to the rights of property owners.
That forum was directed by former Senator Wallop and by Senator
Craig; at that session I talked a little bit about how we got
into the situation that were in now with so much land-use
control and how this came to be so prominent in the last few years.

For most of this century there has been very little conflict
between conservation and private lands. The conservation movement
in this country was started around the turn of the century by
organizations like the National Audubon Society and some of the
first land trusts in the nation, like the Trustees of Reservations,
formed in Massachusetts in 1891. Basically, they all believed
in private property, in that they used private property. When
there were no laws to protect wildlife, to protect habitat, you
had concerned citizens who simply went out and took pride in doing
good. The Audubon Society found the last refuges, the last places
where the plume birds, the egrets and herons and roseate spoonbills
nested. In order to protect them from the depredations of the
feather trade for womens bonnets and hats at that time,
the Audubon Society bought these areas and set them aside as private
wildlife refuges and then hired their own private game wardens
to protect these areas. As a matter of fact, the first wildlife
warden in America to be killed in the line of duty was Guy Bradley,
a private warden for the National Audubon Society.

For much of this century, this was the whole approach of the
conservation movement. As Roger Pilon mentioned in his talk, the
old-fashioned way to protect the environment was you went out
and bought it, instead of forcing others to do as you wanted them
to do.

But this began to change in the late sixties with the rise
of the modern environmental movement, which, as most of you know,
has a very different view of man and nature than the old conservation
movement.

The old conservation movement believed that man and nature
could live in harmony, that man and nature were part of the same
nexus, and the trick was really to get the incentives right. If
the government subsidized farmers to drain wetlands to increase
crop production, well, of course, wetlands would disappear.

This didnt mean that farming for profit was immoral or
had to be replaced. It simply meant that government was creating
the wrong incentives and the first thing we needed to do with
government, was that government had to have its own Hippocratic
oath and do no harm itself, and stop subsidizing environmentally
destructive behavior.

But the new environmental movement, which more or less was
a movement that came out of the left of the late Sixties, viewed
man as being alien to nature. Man was really not part of nature,
and the trick was really to find ways to control man, to get man
out of the picture, to reduce mans influence. This environmental
movement also was not a movement that was sympathetic to private
property, to free markets or free enterprise, and particularly
it was that element that was very worried about private property
that led to the situation were in now.

So I think you can fairly say that the modern attack on property
rights began in the late 1960s with the environmentalist
drive for national land-use control.

Some of you may remember that this focused around the efforts
in the late 60s to pass the Jackson-Udall national land-use
control bill, which was even supported by President Nixon. In
fact, Nixon went even further. The White House introduced a bill
that was even more stringent in its control on property rights
than did Jackson and Udall.

Henry Jackson from Washington State had also been the father
of NEPA(1),
which was passed in 1969. NEPA created both the Environmental
Protection Agency and the Presidents Council on Environmental
Quality in 1970.

Nixon began a program after he came in of having an environmental
message each year, which he delivered to Congress and which was
the introduction to the CEQs annual reports. In Nixons
presidential environmental message he said right at that time
that the key thing we needed to do in the environmental arena
was to stop abusing the land. This was the rhetoric that everyone
was using, that every time someone would build a home, this constituted
abusing the land.

Russell Train, who was the first head of CEQ, stressed continuously
that land-use was the last area of America that was not controlled
by the federal government, and that we needed to step in in a
big way.

One of the first senior staff hired by the Council on Environmental
Quality was a young Yale law school graduate by the name of Bill
Reilly. You may remember that a later president, George Bush,
made him the head of the Environmental Protection Agency. Bill
Reillys first job in Washington was that he was given the
task of creating the intellectual framework for national land-use
control in a series of studies which he wrote, contributed to,
or commissioned.

At that same time, President Nixon had also created something
called the Citizens Advisory Commission on Environmental Quality
which was actually in place for about a year or so before the
Presidents Council on Environmental Quality was started.
Its interesting to look at the Citizens Advisory Committee.
The simple citizen who headed that up was one Laurence Rockefeller.
The executive director was Mr. Rockefellers longtime personal
advocate Henry L. Diamond, who many of you may remember as the
first New York State Commissioner for the Department of Environmental
Conservation.

Another simple citizen was Pete Wilson, who was then the Mayor
of San Diego and, as you know, brought in San Diegos land-use
controls, which are probably the most stringent in the nation.

In early studies they brought out, one of their major concerns,
which they seemed to think was a major threat to the environment,
was people building vacation homes. Well, you know how sensitive
the Rockefeller family has always been with their vacation homes.
You know where all theirs are located.

The Various Studies That Were Brought Out by the CEQ
The first study that was brought out in 1971 was called The
Quiet Revolution in Land-Use Control. Well, of course at that
time it was a very quiet revolution. They were trying to keep
it quiet.

Some interesting inside trading went on there. The law firm
that Bill Reilly was working for when he first graduated from
college and before he came along to the federal government was
a Chicago law firm. He continued to give contracts to write these
various studies for the Presidents Council on Environmental
Quality to his former associates in that law firm. His associates
Fred Bosselman and David Callies were the authors of The Quiet
Revolution on Land-Use Control.

The second study that came out in 1973 was The Use of Land:
A Citizens Policy Guide to Urban Growth. That
was collectively written by Bill Reilly and edited by Bill Reilly.

In that same year, 1973, probably the most significant of these
studies came out, also authored by Reillys former associates
Bosselman, Callies and this time John Banta, another young lawyer
from that law firm in Chicago. It was called The Taking Issue,
and what is significant is the subtitle, An Analysis of the
Constitutional Limits of Land-Use Control.

This was their real concern. How far could they push land-use
control?

They continued to bring out studies. In 1976 they brought out
another study, again by the so-called Citizens Advisory
Board, How Will America Grow: A Citizens Guide
to Land-Use Planning. Its interesting that most of the
publications, most of these studies, and some of the conferences,
were funded by the Rockefeller Brothers Fund. Bill Reilly would
leave CEQ from time to time and be on the payroll of the Citizens
Advisory Committee.

In addition to this, everybody in Washington was getting in
the game at that time. A number of studies by other Washington
groups were brought out along these lines. The prestigious Natural
Science Foundation brought out a study called, The Environment,
a New Arena for National Land-Use Control.

Again, Bosselman and Callies were involved in preparing studies
for both the Environmental Protection Agency and HUD.(2) The EPA study was
particularly instructive because what it mainly dealt with was
how the EPA could prevent landowners from developing their land
by refusing to grant necessary permits for such things as sewer
hookups. By controlling simple things like this they realized
that you control private property.

There was a common theme that went through all of these CEQ
studies. And basically that theme was, and in a few places its
spelled out quite well, that private property is simply a quaint
anachronism that the nation could no longer afford. Theres
a section in which they boldly spell it out. Its not quite
in direct quotes, but its pretty close, saying weve
passed the time when we can afford to have a system of private
property and we must move to a system of public property in which
each and every individual in society has an equal say in how land
is used. This was all being spelled out 20-25 years ago.

Its instructive that most of these studies are still
available. They are certainly probably still in print, but I dont
know if the CEQ has them. You can certainly contact them. Its
worth getting them and reading them and seeing how they anticipate
some of very problems youre seeing on the land today.

I spend a lot of time travelling around and talking to landowners,
visiting them, seeing how theyve been prevented from using
their land and its amazing how the landowners are just in
shock. When you go around the country, you see somebody, a small
tree farmer in North Carolina who inherited the land from his
father. All he has in the world are the trees on that land. Thats
his retirement for Florida or wherever he goes, thats his
kids education, thats collateral to get a loan from
the bank or something, and suddenly a woodpecker shows up on his
land and the American dream has been turned into a nightmare.
He cant take a single tree off that land. If he does, hes
facing a fine of $100,000 or a year in jail, Not only does he
get not just compensation, he gets no compensation.

I talk to landowners, with tears running down their faces,
saying My son died in Korea for this country. My
grandfather came to escape tyranny in the Old World. How
can this happen?

Lots of folks, they think theres some kind of international
conspiracy or something run by the bankers or the United Nations.
But all they have to do is just look at their neighbors, people
who are environmentalists, people in government and so on who
dont particularly care about private property and set up
a system to take it away from them. So thats why its
instructive to go back and read these reports.

These studies explicitly attack the takings clause
of the Fifth Amendment. They called the takings clause, for instance,
in various places, the so-called takings clause. In
other places they said it was is simply a myth.

The takings issue is important. One of the quotes from these
reports is, If the courts find the system of land-use regulations
so severe that it constitutes a taking, then the whole
system of land-use collapses.

They spelled out an agenda, saying, Land kept for
open space is best left in private hands but regulated to prohibit
uses inconsistent with the conservation of scenic characteristics
or ecological processes.

They called for a national classification of all land with
a set of constraints on development and use of that land.
They said that government at all levels must purchase all the
land it can. But then they recognized that the effectiveness of
open space purchase is threatened by increasing land prices. They
said that unless price rises are dampened, land acquired by government
will be necessarily expensive. So we need to start regulating
land early. Thats instructive.

And then they said, however, that none of the measures
[they] proposed are intended solely to reduce land price increases.
Well...

You can see their agenda where they also pointed out again
that, Not all open spaces need to be public open spaces,
though. In fact they cannot be. We will do well to meet the recreation
needs, open space needs, of increasingly leisure-oriented people
by budgeting enough public lands for parks. It is unthinkable
the nation could ever buy all the scenic vistas and wetlands,
beaches and dunes, farms and forests, that it is so desirable
and necessary to protectbut we should not have to buy them.

I.e., theyre going to regulate them.

They also said, A changed attitude towards land, a separation
of ownership of the land itself from ownership of urbanization
or development rights is essential.

Other societies have abandoned the old assumption in
their legal systems and now treat development rights as created
and allocated to the land by society.

Therefore they can simply take them away at will.

They also had a nice approach on how they were going to accomplish
some of this.
One CEQ study said, Donations by land subdividers and developers
are a principal source of public open space. Most of these dedications
are mandatory.

Nice concept of donations, isnt it, mandatory donations.

They said, mandatory dedication requirements can be an
inexpensive way to provide open space.

No kidding. This is what is happening to folks all around the
country today. When the Mafia does this, they are prosecuted for
extortion. When the Department of Interior does it, it is called
environmental mitigation.

We believe the requirements should be used even more
widely than they already are.

Another statement from the studies, Public acquisition
can not and need not be the whole answer to the problem of open
space and historic conservation. In the first place, funds for
land purchases are limited and what we must do is control development
by withholding permits.

You see, this has been spelled out for twenty years.

Heres an interesting thing for the lawyers. They said,
We need a vast expansion of regulatory takings in order
to make them common place and acceptable, so the courts will think
of this as a legitimate part of the police powers.

They said, We need to expand environmental divisions
within the offices of state attorneys general. We need non-profit
organizations like the Environmental Law Institute to spend more
research on land-use regulations.

And they called for strengthened planning and regulatory
legislation, saying that this can help create a consensus
that regulations are valid and regulations are appropriate.

And finally, under a call for what we should do with the courts,
they said, the U.S. courts should presume that any change
in existing natural ecosystems [Thats doing anything
to your land, farming it, whatever, cutting down trees] is
likely to have adverse consequences, and the proponent of change
[i.e. the landowner] should be required to demonstrate the
nature and extent of any changes.

Finally, they said, Its time that the U.S. Supreme
Court reexamined its earlier precedents that seemed to require
a balancing of public benefit against land value loss in every
case and declare that when the protection of natural, aesthetic
or cultural resources, or the assurance of orderly development
are involved, a mere loss of land value can never be justification
for invalidation of the regulation of land use.

So these folks, the environmentalists, have known for a long
time what they wanted to do and this is what we are now seeing
taking place all across the American landscape.

Now often people dont take action until their basic core
beliefs are threatened. Its interesting that as the debate
over land-use control went on in the early 70s, despite
all this universal government support for universal land-use controls,
the legislation was finally defeated in a very close vote in the
House on a rule by a mere 7 votes in April 1974. The vote was
211 to 204. In fact, everybody thought it was pre-ordained, and
that there was no way to stop land from land-use control.

We are very fortunate that there were two very good Congressmen
at the time, Sam Steiger from Arizona and Steve Symms from Idaho,
together with two executives with Georgia-Pacific Corporation,
Bill Moshofsky and John Thompson, Dan Denning with the U.S. Chamber
of Commerce and Phil Truluck of the Republican steering committee,
who put together a coalition at the last moment when they figured
out exactly where land-use control was going to take the nation
and were able to kill it by seven votes.

Those of you that follow the history of the environmental movement
know this is essentially the only major piece of environmental
legislation thats ever been defeated and the environmentalists
learned a very good lesson from that. They abandoned frontal attacks
on private property rights, which they learned Americans would
defend.

But the CEQ studies already had created their blueprint for
massive regulation of land, for preventing the private use of
private land. And what theyve achieved since has been essentially
a defacto nationalization of private land, converting it to public
uses without the necessity of paying one cent of compensation.

They began to use existing laws and newly created legislation
passed ostensibly to protect resources and amenities which were
popular with the public and which enjoyed wide support. However,
there was a catch in all this legislation. The way it worked,
the way it reached the desired ends, was by preventing private
land owners from using their lands, because doing so would harm
whatever was being protected by that particular law. By the massive
use of regulatory takings proposed by Bill Reilly and the CEQ,
the federal government has, in essence, taken over and nationalized
tens of millions of acres of private lands.

Through legislation and regulations, they have thrown together
a system to protect endangered species, migratory birds, wetlands,
wild and scenic rivers, open space, national trails, coastal zones,
historic and cultural sites and buildings, natural landmarks,
scenic highways and byways, viewsheds and scenic vistas, greenways,
riparian zones, bikeways and abandoned railroad rights-of-way.
And they require buffer zones around many of these.

Thus without any national land-use control legislation ever
having been passed, without any legal takings through condemnation
and compensation, the governments quiet use of massive regulatory
takings has placed a straightjacket over Americas private
land ownership.

The scope and extent of this taking is so vast that it will
probably require essentially a property rights revolution for
Americans to win back their property rights. I think part of this
property rights revolution represents the last couple of classes
of the Congress, people like Congressman Pombo and then a whole
group of people who come in in the last election, the freshman
Congress from across the West and the South, running essentially
on property rights issues.

This effort for national land-use control has continued, building
on the CEQ studies. Almost every one of the major studies that
the environmental community has since brought out has again stressed
that part of their unfinished agenda. Theres a book called
The Unfinished Agenda that came out in 1976, another Rockefeller
Brothers Fund book, which said that one of key essentials of the
environmental agenda still to be met was national land-use control,
either indirectly or directly.

In November 1988 the environmental community brought out the
Blueprint for the Environment. It pointed out that the
whole system of land use must be resolved in one way or another.
They called for combining a lot of this and keeping a lot of this
from development, in natural systems or greenways and scenic byways,
which would crisscross like a system of webs across America and
halt development along all sides of these.

To show how theyre always thinking, there was a very
interesting conference in 1988. It was the 20th anniversary conference
of the Wild and Scenic Rivers start-up. Patrick Noonan was one
of the keynote speakers. He had been head of The Nature Conservancy
at one time and more recently of The Conservation Fund.

Patrick Noonan was talking of roundabout ways to achieve national
land-use control. He said one of the best ways weve come
up with and well start exploring through the 1990s
will be to develop concerns, public fears, about the quality of
groundwater, what has happened to groundwater... theres
no water safe to drink in our country. Well use protection
of our precious groundwater to control everything that goes on
on top of the land. This will be the indirect way it will come
about.

Last November there was an interesting conference on problems
with the Endangered Species Act that the Fish and Wildlife Service
put on. Michael Bean of the Environmental Defense Fund, Mr.
Endangered Species in Washington, DC, was then talking about
problems with the Endangered Species Act in the Southern Pine
Forest, that whole stretch of forest of longleaf and loblolly
pine that goes from Virginia over to Texas. About 90 percent of
that is owned privately, 70 percent in essentially Mom and Pop
operations. He pointed out that folks are cutting down those trees
and the environmentalists dont like that. And he also pointed
out, fairly, that sometimes landowners were accelerating their
rate of cutting because they were afraid that if they let their
trees grow too long, to reach their optimum economic value, they
were afraid that red-cockaded woodpeckers would come in. And so
people were cutting their trees earlier. He said that within this
political climate we might have to start paying some government
subsidies.

He said that now when people do cut their trees theyre
intelligent enough that they do not want to replant in pine trees
because they know woodpeckers love their pine trees. So theyre
starting to plant non-native trees.

Of course the environmentalists dont like that because
they want to protect the native habitat instead. There was one
of the folks in the audience who was in the National Biological
Survey and said, Well I think youve got that wrong,
Michael. Why should the government have to compensate landowners
to keep them from planting other trees, non-native trees? Well
just pass a law and say if you replant you must replant in native
trees. Well tell you exactly how youre going to have
to use your land.

Again, to show you how far theyre thinking down the line,
theyve taken an issue you know something aboutglobal
warming. One of the interesting aspects of global warming is that
as more CO2 goes in the atmosphere, CO2 is also fertilizer for trees. It makes vegetation
grow faster and more of it and there are signs that this is causing
a substantial greening of the planet. The rates of tree growth
all across the planet are increasing.

One of the ideas that Michael Bean and others have come up
with is that this might be a way of achieving land-use control
of all of the forests in the United States, particularly in the
Southeast. That is because some silviculturists have done a study
and suggested that the longleaf pine down there is a very good
sink, a particularly efficient sink for CO2.
It sucks in CO2 faster than other trees
and grows faster. They said that what we might have to do is to
set up some sort of program through the Environmental Protection
Agency so that we can mandate that people must let their trees
grow in order to defer global warming and therefore they cant
cut them. This would nationalize the millions of acres of private
forest land in the Southeast. So theyre coming at you from
every direction they can. Theyre not stopping at all.

To conclude with the most recent example of farsighted national
land-use control, something Carols written a lot about has
been the environmentalists use of UNESCOs World Heritage
Sites and Biosphere Reserves. As you know theres been this
controversy out in Montana and Wyoming in which the Noranda Company,
a Canadian Mining company that has an affiliate in Montana called
Crown Butte, is planning to develop a mine. Their New World mine
is in a heavily mineralized area, in an area where theres
all kinds of mines dating back to the 1860s, on the outskirts
of Yellowstone National Park. Now you cannot see this mine site
from Yellowstone National Park. It is an underground mine. All
of the drainage that goes from the mine goes out of the park,
not into the park, and in the process of developing the mine,
they will clean up all the abandoned mine sites that were left
there at the turn of the century when there was no sensitivity
to environmental issues.

But despite all of those things, the environmental community
is determined that they will stop the private use of private land
and one of the ways theyve done this is, to use the fact
that Yellowstone National Park is on the World Heritage Site list.
The World Heritage Site program has a couple of hundred units
around the world. I think there are 18 or so in the United States.
Part of the original treaty that created the World Heritage Sites
is that they created a separate list called the World Heritage
Sites in Danger and so if the nation is not taking care
of its so-called World Heritage Site the way the environmental
movement wanted it to, they can put it on the World Heritage Sites
in Danger and supposedly shame the nation into changing its management.
So what the environmental community did earlier this year, was
that Paul Pritchard of the National Parks and Conservation Association
sent a letter off to the World Heritage Sites offices in Europe
and asked the World Heritage Committee to send a team to investigate
this mining site to see if it constituted a threat to Yellowstone.
This was a carefully planned effort to bias the permitting processes
going on in the federal government, especially the NEPA process
and the EIS(3)
necessary to open the mine. Then what was intended was, if the
World Heritage Committee responded that they did not have sufficient
funds to send this team there, the U.S. government would pay the
expenses. So Secretary Babbitt and Assistant Secretary George
Frampton (who are aware of the fact that the National Park Service
doesnt have enough money to take care of its own parks)
found enough money to fly all these international environmentalists
into Yellowstone so that they could come and investigate this
so-called threat to the park by developing this mine on private
property.

Now theyve not yet made their final report but they complained
about the fact that cutting trees outside the park seemed to be
a threat, that management of wildlife inside the park seemed to
be a threat, and that the tourism in the park seemed to be a threat
to this World Heritage Site. I think we know which way their final
decisions going to come down.(4)

The message I want to leave you with is that for about 25 years
weve had a long and very careful and very sophisticated
effort by leading environmentalists and by national land-use planners
to develop a blueprint for how they would take Americas
private lands and how they would circumvent the tricky little
problem of the Fifth Amendment to the United States Constitution.

So thats out there. I encourage you to look at this,
to get hold of these studies so you have an idea of the very ideas
they call for, the very planks in their platform, so you can see
how theyre using it, and hopefully we can find ways to turn
this around and see that the Fifth Amendment is lived up to in
both the spirit and the letter. I think with some of the new Congressmen
we have, new Congressmen like Richard Pombo, we can hopefully
achieve this. Thank you.

(1)
National Environmental Policy Act(2) U.S. Department of Housing and Urban
Development.(3) Environmental Impact Statement required
under NEPA.(4) To no ones surprise, on December
5, 1995, the World Heritage Committee, meeting in Berlin, released
the results of their investigation and officially placed Yellowstone
National Park on the black-list as a World Heritage Site in Danger.
So the environmentalists Quiet Revolution in Land-Use Control
has extended all the way to the United Nations. - R.J.S.

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